North Carolina’s HB2 and the Shifting Battle over LGBT Rights

In March, in a special session that cost taxpayers $42,000, the North Carolina legislature met and passed, after just nine hours of deliberations that included less than an hour of public comment, the Public Facilities Privacy and Security Act, a piece of legislation now known more widely as House Bill 2 or HB2. The legal and political situation concerning HB2 is rapidly changing. Just last week, the Department of Justice sent letters to Pat McCrory, North Carolina’s governor, and Margaret Spellings, president of the University of North Carolina system, informing them that HB2 violates the Civil Rights Act, Title IX, and the Violence Against Women Act. Two days later, the Departments of Transportation and Housing and Urban Development announced they were investigating whether HB2 violates the programs and laws they oversee. North Carolina had until today, May 9th, to respond to the DOJ letter. Failing to state that they will not enforce HB2 puts billions of dollars in federal funds in jeopardy. This morning, Gov. McCrory countered by filing a federal lawsuit against the DOJ in order to uphold HB2. The lawsuit denied the legislation was discriminatory, and it denounced the federal government’s actions as “a baseless and blatant overreach.”

HB2 supporters have defended the law as a vitally necessary response to an ordinance passed by the city of Charlotte that would have allowed citizens to use public accommodations—including bathrooms, locker rooms, and changing rooms—that match their gender identity. (Charlotte’s ordinance was consistent with federal law and with similar statutes in more than 200 cities across the country.) And yet, HB2 goes much further than protecting the sanctity of public restrooms. The law clarifies that anti-discrimination and wage laws can be passed only by the state legislature and not by local governments; it voids anti-discrimination protections for sexual orientation, gender identity, familial and marital status, and veteran status adopted by some North Carolina municipalities; it prohibits local governments from setting minimum wages above the state-mandated level; it eliminates the ability of those injured by discrimination from pursuing their claims in state court. Even if North Carolina complies with the DOJ’s directive, these portions of HB2 will remain in place.

Despite the law’s breadth, detractors and admirers have engaged it primarily as another flashpoint in the nation’s conversation about the dignity and equality of lesbian, gay, bisexual, and transgender persons. While many religious conservatives have been vocal in their support of HB2, and while social media “conversations” eventually devolve into assertions of the obvious fixity of maleness and femaleness as part of humanity’s divine design, public support of the law has consistently and continuously been articulated in the secular terms of privacy, safety, and business autonomy. Even Mark Creech, executive director of North Carolina’s Christian Action League, has defended HB2 in terms of the privacy and safety of women and children, and the autonomy of private businesses. Given the quick and ready appeals to Scripture and confident assertions about God’s intentions in recent fights about marriage equality, as well as slightly older struggles regarding funding for AIDS research and education, and early attempts to secure anti-discrimination protections for LGBT persons, the pronounced absence of such discourse around HB2 represents a noteworthy shift in both tactics and cultural attitudes.

Governor McCrory has insisted that HB2 be distinguished from the religious freedom bills recently passed in Tennessee and Mississippi. He has reminded critics that he vetoed a religious freedom bill that would have allowed magistrates in North Carolina to not issue marriage licenses to same-sex couples. In HB2’s wake, in fact, God has been invoked most frequently by the bill’s opponents: They have appealed to religiousvalues to argue for the equal treatment of LGBT people. Although recent historical studies show why we shouldn’t call this alliance between religious and LGBT leaders a “shift”—consider, for example, Jim Downs’ Stand by Me, Mark Jordan’s Recruiting Young Love, and Heather White’s Reforming Sodom—pro-LGBT religious voices have gained prominence and legitimacy in recent decades.

The very existence of religious freedom bills—whether proposed or passed—highlights this changing landscape. No longer can those who have biblically based objections to homosexuality easily speak them in that idiom in the public square. They must learn a “competing tolerances” dialect: If LGBT people are granted freedom to pursue their “lifestyles” in recognition of their inherent worth and dignity, then we, religious folk, must also be allowed to live according to our sincere convictions. This strategy implicitly recognizes the waning authority of religion while relying on the respect, however grudging from some quarters, that religion still demands. This strategy undermines religious and LGBT leaders who seek to demonstrate that texts and traditions do not necessarily condemn LGBT people. After all, it doesn’t matter if your understanding of faith privileges equality, if what I am seeking is the right to live out my understanding of my faith. Disagreement over the meaning of religion is built into the approach. And insofar as religious identity can be conceptualized as a minority identity, the rhetorical and political gains of LGBT persons over the past few decades can be taken up as offensive weapons in a redefined battle.

Supporters of HB2, however, have not appealed to religious freedom. Instead, they defend the law as common-sense legislation that protects the privacy and safety of women and children. By keeping women in women’s restrooms and men in men’s, supporters intone, HB2 keeps “perverts” from using the cloak of a claimed gender identity as cover for their nefarious deeds. Ignoring for the moment (even though doing so is quite difficult) the marked tension between the North Carolina legislature’s record on education, health care, domestic violence and rape prevention services, and meaningful alleviation of poverty—as well as the marked opposition by many of HB2’s supporters to anti-bullying legislation that included protections for sexual orientation and gender-identity—and their newfound sense of responsibility to protect women and children, and putting aside for the moment (even though doing so is quite painful, verging on irresponsible) the lethal violence directed toward trans* bodies—bodies not counted among the “women and children” about whom the legislature now cares so deeply—it is vital that we remember that the absence of religious language hardly means religious assumptions are not operating.

Characterizing women as uniquely fragile and vulnerable, as needing protection, equating them—to a greater or lesser extent—with children is a gendered vision with deep religious roots. And it’s not just that women need protection: They need to be protected by men. Watching videos, reading news stories, and perusing social media comments about HB2, one is overwhelmed by the presence of (mainly white) men claiming authority over and responsibility for “their” wives, “their” daughters, “their” women. (In sharp contrast, Fox News’ Megyn Kelly explained to Gov. McCrory that stalls in women’s restrooms are a sufficient guarantee of privacy). Men claiming ownership over and control of women in the name of shielding them from evil: This is also a very old, profoundly religious narrative. And the nature of the danger? The threat of sex; the risk to innocence and purity. Women and children will be exposed to, forced to be in the presence of, perversion. The susceptibility of women and children to sexual temptation and the clarion call to secure their virtue? These fears and their resultant obligations also sound in multiple religious texts and traditions. The sinister, all-pervasive threat of sexuality justifies men’s control of women and children. Here, there is no tension: HB2 is fully consistent with North Carolina’s regulation of abortion, contraception, and sex education.

This vision of sexual threat is also fully consistent with a conservative religious commitment to family values. Women and children are threatened, according to HB2’s defenders, by the pervert lurking just outside the bathroom door at Target. The dangerous male is the invading male, the outsider. The specter of “stranger danger” looms large, despite all the evidence that abuse is committed mainly by men who are already close to women and children in private spaces—fathers, uncles, brothers, husbands, boyfriends, coaches, teachers, and clergy. Even opponents of HB2 fuel this faulty fantasy. When insisting, quite rightly, that women’s bathrooms will not be made more dangerous by allowing trans* women to enter them and by pointing out that trans* people face a greater risk of being injured than causing harm in most public spaces, many of HB2’s detractors are quick to speak of sexual predation as if it is primarily something that happens in public spaces at the hands of strangers. As long as this vision of sexual threat is given energy and sustenance, it will remain important to “protect” children from sexuality in its various guises, and this logic will make it that much easier to sequester children from relevant knowledge about sex. The effort to protect children from sexual harm quickly becomes its own form of sexual harm, especially for LGBT youth. (Joseph Fischel’s Sex and Harm in the Age of Sexual Consent is a recent and thoughtful exploration of these questions.) And, of course, this understanding of sexual threat maintains bathrooms—and other similar spaces—as powerful sites for exacerbating anxieties about race, gender, and sexual difference.

The “common sense” behind HB2 must also be interrogated for its religious foundations. As many supporters insist, the legislation does nothing more than keep men in men’s spaces and women in women’s spaces. And the law refers this determination to biology—or “the physical condition of being male or female”—giving it the air of objectivity. This appeal to biology relies on religious conceptions of a created order where humanity exists as male and female, and only male and female. What neither the law nor its supporters note, however, is that many factors comprise the “physical condition of being male or female,” including external genitalia, internal reproductive organs, chromosomes, hormones, and secondary sex characteristics. These biological features are not always easy to interpret nor do they all line up on the same side of the male/female divide. To say it most emphatically: Biologically, human beings are much more complicated and varied than the two categories of male and female recognize. For this reason, the law defines “biological sex” as “the physical condition of being male or female, which is stated on a person’s birth certificate.” HB2, then, establishes a consistent—if somewhat terrifying and totalitarian—version of state power over sex: Once the state has classified a person sexually, that is the only classification that matters, until the state says otherwise. HB2 reduces sex determination to external genitalia and arrogates the state’s authority above the Creator’s.

The most compelling evidence of HB2’s religious roots—and the specific nature of those roots—can be found in Gov. McCrory’s interview on Meet the Press. McCrory appeals several times to history and tradition during this relatively brief appearance. When pushed on the issue of protecting LGBT citizens from discrimination, he insists on the need for dialogue in the face of an “extremely new social norm that has come to our nation.” Of course, given our history and traditions, any Southern governor’s call to slow down and consider carefully a demand for justice before making social change should give us pause. But this worry about newness, novelty, and innovation is consistent not only with a conservative political view, but also with a conservative religious understanding of the order of creation as something permanently fixed since its origin by a Divine Creator. In conversations about homosexuality generally and marriage equality specifically, political and religious conservatives make claims about unchanging organizations of desire and family that are, quite simply, demonstrably false representations of a vastly more complex historical record. More importantly, though, there is nothing new about a social norm that demands decent, equitable, and humane treatment of transgender persons. Such persons have been known to medicine, psychiatry, law, and literature since at least the late nineteenth century, and they have been making claims for respect since at least the early twentieth. And gender variant persons have been recognized by a wide array of religious traditions for much longer than that. The newness McCrory identifies is nothing more than evidence of a certain form of privilege—the privilege that Gov. McCrory and the author of this essay have because we experience our gender identity as relatively consistent with the cultural interpretation of our bodies. Because we are not trans*, trans* issues and claims can be novel, rather than the stuff of our existence; they can be subjected to the delays of reasonable deliberation, rather than the urgent condition of our survival. But, as scholar Eve Sedgwick has argued, willful ignorance is not only a form of privilege, it is a form of violence.

Regardless of HB2’s fate in courtrooms, executive offices, and legislative chambers, the debate around this law merits attention because it reveals both the rapid reorganization of religion, sexuality, and gender in our cultural and political landscape, as well as the staying power of older patterns of thinking. The ideas embedded within HB2 merit attention because they have—and will—foment psychic and physical violence against trans*, gender-variant and queer bodies, against bodies of color, against workers’ bodies. HB2 merits attention because it is a rather cynical ploy that relies on anxieties about trans* persons to deflect attention away from the state’s drastic transformation of discrimination, wage, and worker protections. As Leo Bersani observed when writing about government indifference to AIDS, “Analysis, while necessary, may … be an indefensible luxury … Morally, the only necessary response to all of this is rage.”

Kent L. Brintnall is the Bonnie E. Cone Early-Career Professor in Teaching at the University of North Carolina at Charlotte, where he is affiliated with the Religious Studies Department and the Women’s & Gender Studies Program. Prior to becoming a professor, he worked for several years as a staff attorney for the Ninth Circuit Court of Appeals in San Francisco.